[Cite as State v. Little, 2014-Ohio-4871.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 2-13-28 

 v. 

MICHAEL R. LITTLE, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Auglaize County Municipal Court 

Trial Court No. 13 TRC 06117 

Judgment Reversed and Remanded 

Date of Decision: November 3, 2014 

 

APPEARANCES: 

 

Kenneth J. Rexford for Appellant 

Alexander N. Fowler for Appellee 

 
Case No. 2-13-28 

-2- 

WILLAMOWSKI, P.J.

{¶1} Defendant-appellant, Michael Little (“Little”), appeals the November 

5, 2013 judgment of the Auglaize County Municipal Court finding Little guilty of 

OVI (operation of a vehicle while under the influence of alcohol) in violation of 

R.C. 4511.19(A)(1)(a), a first degree misdemeanor, and sentencing him to serve 

ten days in jail after Little pled “no contest” to the OVI charge. On appeal, Little 

challenges the trial court’s entry overruling his suppression motion. 

{¶2} The facts relevant to this appeal are as follows. On July 31, 2013, 

Little was involved in a single car crash in Auglaize County, Ohio. Trooper 

Joseph Nartker of the Ohio State Highway Patrol was dispatched to the crash 

scene at approximately 1:30 a.m., where he found Little lying in the center of the 

roadway, bleeding heavily from the back of his head. Waynesfield EMS was 

already at the scene when Trooper Nartker arrived. Waynesfield EMS advised 

Trooper Nartker that Little was “verbally combative” and that there was a “strong” 

odor of an alcoholic beverage emitting from his person. Little was taken by 

Waynesfield EMS to Lima Memorial Hospital. 

{¶3} Trooper Nartker went to Lima Memorial Hospital, where according to 

the State, Little admitted to consuming four Budweiser beers prior to driving. 

Trooper Nartker obtained a sample of Little’s blood, which was sent to the State 

Highway Patrol lab for testing. Separately from law enforcement involvement, 
Case No. 2-13-28 

-3- 

Lima Memorial Hospital also took a sample of Little’s blood for diagnostic 

purposes. Subsequently, Little was charged with OVI in violation of R.C. 

4511.19(A)(1)(a), a first degree misdemeanor, and “Failure to Control” in 

violation of R.C. 4511.202, a minor misdemeanor. (R. at 1.) On August 7, 2013, 

Little was arraigned and pled not guilty to the charges. (R. at 9.) 

{¶4} On August 20, 2013, Little filed a “Motion to Suppress,” arguing that 

Trooper Nartker’s action of obtaining his blood sample without a warrant 

constituted unreasonable search and seizure. (R. at 16.) The motion was set for a 

hearing on September 20, 2013, but prior to that, Little filed another motion to 

suppress, titled “Motion to Suppress II.” (R. at 25.) In this motion, Little 

contended that the State had agreed not to use the blood test results that were the 

subject of the first suppression motion, but Trooper Nartker had since issued a 

request for hospital records of the blood test results done by hospital staff for 

medical reasons. (Id.) Trooper Nartker did not obtain a warrant prior to 

requesting Little’s medical records. Instead, he utilized R.C. 2317.02(B)(2)(a), 

which states, in relevant part: 

If any law enforcement officer submits a written statement to a 

health care provider that states that an official criminal investigation 

has begun regarding a specified person or that a criminal action or 

proceeding has been commenced against a specified person, that 

requests the provider to supply to the officer copies of any records 

the provider possesses that pertain to any test or the results of any 

test administered to the specified person to determine the presence or 

concentration of alcohol, a drug of abuse, a combination of them, a 
Case No. 2-13-28 

-4- 

controlled substance, or a metabolite of a controlled substance in the 

person’s whole blood, blood serum or plasma, breath, or urine at any 

time relevant to the criminal offense in question, and that conforms 

to section 2317.022 of the Revised Code, the provider, except to the 

extent specifically prohibited by any law of this state or of the 

United States, shall supply to the officer a copy of any of the 

requested records the provider possesses. If the health care provider 

does not possess any of the requested records, the provider shall give 

the officer a written statement that indicates that the provider does 

not possess any of the requested records. 

R.C. 2317.02(B)(2)(a). 

{¶5} Revised Code 2317.022, which is referenced in R.C. 

2317.02(B)(2)(a), contains the following language detailing how the request for 

medical records should be made. 

If an official criminal investigation has begun regarding a person or 

if a criminal action or proceeding is commenced against a person, 

any law enforcement officer who wishes to obtain from any health 

care provider a copy of any records the provider possesses that 

pertain to any test or the result of any test administered to the person 

to determine the presence or concentration of alcohol, a drug of 

abuse, or alcohol and a drug of abuse in the person’s blood, breath, 

or urine at any time relevant to the criminal offense in question shall 

submit to the health care facility a written statement in the following 

form: 

“WRITTEN STATEMENT REQUESTING THE RELEASE OF 

RECORDS 

To: .................... (insert name of the health care provider in 

question). 

I hereby state that an official criminal investigation has begun 

regarding, or a criminal action or proceeding has been commenced 

against .................... (insert the name of the person in question), and 

that I believe that one or more tests has been administered to that 

person by this health care provider to determine the presence or 

concentration of alcohol, a drug of abuse, a combination of them, a 
Case No. 2-13-28 

-5- 

controlled substance, or a metabolite of a controlled substance in that 

person’s whole blood, blood serum or plasma, breath, or urine at a 

time relevant to the criminal offense in question. Therefore, I hereby 

request that, pursuant to division (B)(2) of section 2317.02 of the 

Revised Code, this health care provider supply me with copies of 

any records the provider possesses that pertain to any test or the 

results of any test administered to the person specified above to 

determine the presence or concentration of alcohol, a drug of abuse, 

a combination of them, a controlled substance, or a metabolite of a 

controlled substance in that person’s whole blood, blood serum or 

plasma, breath, or urine at any time relevant to the criminal offense 

in question.[”]1

R.C. 2317.022(B). 

{¶6} In his second suppression motion, Little argued that R.C. 2317.02 was 

unconstitutional. (R. at 25.) In the alternative, he asked for a finding that the 

statute did not allow a warrantless search in his case. (Id.) 

{¶7} On September 16, 2013, the State filed a response to Little’s first and 

second suppression motions. (R. at 26.) In its response, the State cited this 

Court’s previous case of State v. Meyers, 146 Ohio App.3d 563, 767 N.E.2d 739 

(3d Dist.2001), contending that the blood testing by the hospital “in the course of 

independent medical treatment and diagnostic care is not a traditionally exclusive 

state function that has been delegated to health care providers” and thus, the blood 

test that was the subject of the second suppression motion was not a government 

action. (Id.) Little filed a reply and provided supplemental authority for his 

 

1

 The segment concludes with various lines for the Officer’s contact information. 
Case No. 2-13-28 

-6- 

second suppression motion. (R. at 28, 29.) On October 2, 2013, the trial court 

filed a journal entry overruling Little’s suppression motion.2

 (R. at 30.) 

{¶8} On November 5, 2013, Little withdrew his previously tendered plea of 

not guilty and entered a plea of “No Contest” to OVI, his second in six years, in 

violation of R.C. 4511.19(A)(1)(a). In exchange, the State agreed to dismiss the 

Failure to Control charge. Ultimately the court found Little guilty of OVI and 

sentenced him to ten days in jail, fine, and license suspension. Additionally, the 

trial court imposed community control sanctions. A judgment entry reflecting this 

was filed on November 5, 2013. (R. at 34.) The execution of the sentence has 

been stayed pending this appeal. 

{¶9} Little now appeals, asserting the following assignments of error for 

our review. 

ASSIGNMENT OF ERROR 1 

THE TRIAL COURT ERRED BY DENYING MR. LITTLE’S 

MOTION TO SUPPRESS, IN VIOLATION OF HIS RIGHT 

TO PRIVACY AND OF THE PRINCIPLE OF SEPARATION 

OF POWERS 

ASSIGNMENT OF ERROR 2 

THE TRIAL COURT ERRED BY RULING THE R.C. §2317.02 

AND §2317.022 ARE CONSTITUTIONAL. 

{¶10} Before addressing the assignments of error, we note that Little chose 

to disregard the rules of appellate procedure, which require him to argue each 

 

2

 It is not clear from the record whether an oral suppression hearing was actually held. If there was an oral 

suppression hearing, no transcript was filed. 
Case No. 2-13-28 

-7- 

assignment of error separately in his brief (see App.R. 16(A); App.R. 12(A)(2)), 

and combined the arguments related to his first two assignments of error under one 

section of his brief. We discourage this practice as contrary to the rules and 

disorderly. If Little felt that one argument supported his contentions, one 

assignment of error should have been sufficient. He expects the State and this 

court to pick and choose which of the statements in his discussion support the first 

assignment of error and which ones support the second assignment of error. 

Instead of doing so, this court may simply “disregard an assignment of error 

presented for review if the party raising it * * * fails to argue the assignment 

separately in the brief, as required under App.R. 16(A).” App.R. 12(A)(2). In the 

interest of justice, we nonetheless elect to consider Little’s arguments at this time. 

First and Second Assignments of Error— 

Warrantless Search of Little’s Medical Records Pursuant to 

R.C. 2317.02(B)(2)(a) and 2317.022 

{¶11} Little challenges the use of R.C. 2317.02(B)(2)(a) and 2317.022 to 

obtain his medical records as unconstitutional. He claims that the statutory 

scheme allows the government to access an individual’s private medical records 

without a warrant, probable cause, or even a reasonable and articulable suspicion 

and without any “procedural safeguards,” where no exigent circumstances exist to 

justify such actions. (App’t Br. at 6, 8, 11.) He further contends that the statute 

“has absolutely no substantial procedural safeguards to ensure against abuse by the 
Case No. 2-13-28 

-8- 

government agents taking advantage of that statute,” does not prohibit 

dissemination of the medical records, and does not provide for a notification to the 

citizen that the intrusion occurred. (Id. at 11-12.) 

{¶12} Although Little discusses multiple legal concepts in his brief, mixing 

them together, he cites two United States Supreme Court cases, Whalen v. Roe, 

429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), and Ferguson v. City of 

Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), which focus on 

the right to privacy and the Fourth Amendment protection against unreasonable 

search and seizure, and which seem to be relevant to the constitutional challenges 

brought herein. We discuss these two cases and address the legal concepts that 

stem from them in detail. The other concepts that are mentioned, but not briefed 

by Little, are not addressed in this opinion because of Little’s failure to support his 

other contentions with “reasons,” “citations to the authorities,” and “statutes,” as 

required by App.R. 16(A)(7). 

A. Whalen v. Roe 

{¶13} Among his other arguments, Little cites Whalen for the proposition 

that the government must “establish administrative procedures—procedural 

safeguards—to protect [the privacy right] whenever government legitimately has a 

need for medical records.” (App’t Br. at 7.) As explained by the Ohio Supreme 

Court, the concerns addressed in Whalen “related to the disclosure of information 
Case No. 2-13-28 

-9- 

to the general public.” (Emphasis sic.) Stone v. City of Stow, 64 Ohio St.3d 156, 

160-161, 162, 593 N.E.2d 294 (1992) (explaining and following Whalen). Both 

the United States Supreme Court and the Ohio Supreme Court held that a mere 

“threat of unauthorized disclosure” is not sufficient to declare a statute 

unconstitutional. Id. at 162-163, citing Whalen 429 U.S. 589. The threat of 

unauthorized disclosure must be “significant” and inevitable in order “to cause [a 

statute] to be declared unconstitutional.” Id.; see also Whalen, 429 U.S. at 600, 

603-604 (holding that the challenged government program did not, “on its face, 

pose a sufficiently grievous threat” to amount to a constitutional violation) 

(emphasis added). Therefore, Whalen does not prohibit disclosure of medical 

records per se, but merely limits disclosure of the information to the general public 

to ensure no “significant” threat of unauthorized disclosure to the public. 

{¶14} Little seems to argue that the statutory provisions at issue in this case 

infringe upon his interest in avoiding disclosure of personal matters. (App’t Br. at 

5, 12.) But he fails to establish a significant and inevitable threat of unauthorized 

disclosure of protected personal information to the general public. The statutes 

restrict the individuals who can make a request for medical records to “law 

enforcement officers,” alleviating Little’s concern that his protected personal 

information will be disclosed by the hospital to the general public. R.C. 

2317.02(B)(2)(a). As discussed above, the concern addressed by procedural 
Case No. 2-13-28 

-10- 

safeguards in Whalen was the disclosure of the patients’ information to the general 

public and not disclosure to the law enforcement officers in a criminal 

investigation.3

 

{¶15} Relying on the United States Supreme Court and the Ohio Supreme 

Court’s holdings that a mere threat of disclosure to the general public does not 

make a statute unconstitutional, but that the threat must be significant and 

inevitable, we do not find that Little has satisfied his burden of proving that this 

statutory scheme is unconstitutional under Whalen. 

B. Ferguson v. City of Charleston 

{¶16} Relying on Ferguson, Little asserts that the statutory scheme at issue, 

which allows the police officer to request and review Little’s medical records 

without a warrant, violates his Fourth Amendment interest in privacy, i.e., the 

protection against unreasonable searches and seizures. 

The Fourth Amendment protects persons from “unreasonable 

searches and seizures” by the government. Section 14, Article I of 

the Ohio Constitution is interpreted to provide the same protections 

as the Fourth Amendment. Evidence seized in violation of the Fourth 

Amendment will be suppressed pursuant to the exclusionary rule. 

However, the defendant must have a reasonable expectation of 

privacy in the evidence seized for standing to challenge the search or 

seizure. 

 

3

 The parties in Whalen did not request suppression of the evidence. There were no “suspects,” because 

that case did not involve prosecution of the patients who used Schedule II drugs, and the records were 

disclosed to the state health department rather than to the prosecution. 
Case No. 2-13-28 

-11- 

City of Marion v. Brewer, 3d Dist. Marion No. 9-08-12, 2008-Ohio-5401, ¶ 7, 

citing State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811 N.E.2d 68, ¶ 8, 

and State v. Robinette, 80 Ohio St.3d 234, 238, 685 N.E.2d 762 (1997). Little 

cites Ferguson in support of the federally recognized reasonable expectation of 

privacy in medical records.4

{¶17} Ferguson is relevant to the issue before us in that it concerned the 

criminal prosecution of patients whose medical records were obtained by law 

enforcement without a warrant. In Ferguson, a state hospital performed drug 

screens on maternity patients who were suspected of using cocaine. Ferguson, 

532 U.S. at 71-72. That policy was implemented in conjunction with the police 

and local officials, and relied on a “threat of law enforcement intervention that 

‘provided the necessary “leverage” to make the policy effective.’ ” Id. The 

United States Supreme Court, reviewing the hospital’s action under the Fourth 

Amendment challenge, held that 

[t]he reasonable expectation of privacy enjoyed by the typical patient 

undergoing diagnostic tests in a hospital is that the results of those 

tests will not be shared with nonmedical personnel without her 

consent. 

Id. at 78. 

 

4

 Although Little attempts to use Whalen in support of his argument that the statutory scheme at issue 

violates the Fourth Amendment’s protection against unreasonable search and seizure, it is important to note 

that the Whalen decision did not concern a Fourth Amendment right. Rather, the patients and physicians in 

Whalen were concerned with the possibility of public disclosure of their medical records and the stigma 

that would attach from it. There was no discussion of arrest or prosecution that would trigger the Fourth 

Amendment challenge, and the Whalen court expressly declined to resolve that case within the scope of the 

Fourth Amendment’s interest in privacy. Whalen, 429 U.S. at 604, fn. 32. 
Case No. 2-13-28 

-12- 

{¶18} The highest court noted that the policy implemented by the state 

hospital, which was a state actor, allowed for a search without a warrant, or even 

probable cause or any reasonable suspicion. Id. at 76-77. The Supreme Court 

disagreed with the “majority of the appellate panel, [which] held that the searches 

were reasonable as a matter of law under [a] line of cases recognizing that ‘special 

needs’ may, in certain exceptional circumstances, justify a search policy designed 

to serve non-law-enforcement ends.” Id. at 74. Finding that no special needs that 

were unrelated to law enforcement were advanced by the hospital’s policy, the 

Ferguson court invalidated the policy as unconstitutional, notwithstanding the fact 

that the hospital’s “motive was benign rather than punitive.” Id. at 79, 85. 

{¶19} Little points to Ferguson’s recognition of “an individual’s federally 

protected expectation of privacy in his medical records” and urges us to invalidate 

the Ohio statutory scheme that seemingly allows search and seizure of an 

individual’s medical records without a warrant, in contravention of this 

expectation of privacy. (App’t Br. at 13.) 

{¶20} Little recognizes that “the constitutional proscriptions of the Fourth 

Amendment and the exclusionary rule apply only to government action and not to 

the actions of private persons.” State v. Meyers, 146 Ohio App.3d 563, 575, 767 

N.E.2d 739 (3d Dist.2001). Therefore, he does not challenge the hospital’s action 

of drawing his blood and performing the medical tests. As such, Meyers, where 
Case No. 2-13-28 

-13- 

we reviewed the issue of “whether the conduct of the hospital constituted state 

action” and held that “the hospital’s blood test did not constitute state action 

necessary to implicate Fourth Amendment protections,” does not apply to our 

analysis herein. See id. at 575-578. 

{¶21} Similarly, the Ferguson dicta about the hospital’s ability to draw 

blood from its patient and independently report it to the law enforcement “under 

rules of law or ethics”5

 does not apply here. See Ferguson, 532 U.S. at 80-81 

(distinguishing the case “from circumstances in which physicians or psychologists, 

in the course of ordinary medical procedures aimed at helping the patient herself, 

come across information that under rules of law or ethics is subject to reporting 

requirements, which no one has challenged here”). 

{¶22} Here, at issue is not the hospital’s action of testing Little’s blood or 

of independently forwarding his medical records to the police “under rules of law 

or ethics.” See id. Rather, the focus is on the action of the police—a state actor, 

searching and seizing Little’s medical records without a warrant. (See App’t Br. at 

18, 20.) This distinction is very important because the Supreme Court recognized 

 

5

 The United States Supreme Court recognized, 

There are some circumstances in which state hospital employees, like other citizens, may 

have a duty to provide law enforcement officials with evidence of criminal conduct 

acquired in the course of routine treatment, see, e.g., S.C.Code Ann. § 20–7–510 (2000) 

(physicians and nurses required to report to child welfare agency or law enforcement 

authority “when in the person’s professional capacity the person” receives information 

that a child has been abused or neglected). 

Ferguson, 532 U.S. at 78, fn. 13. “We do not address a case in which doctors independently complied with 

reporting requirements.” Id at 85, fn. 24. 
Case No. 2-13-28 

-14- 

that the existence of laws requiring the hospital to independently report evidence 

of criminal conduct to law enforcement, “might lead a patient to expect that 

members of the hospital staff might turn over evidence acquired in the course of 

treatment to which the patient had consented,” thus possibly lowering the patient’s 

expectation of privacy. (Emphasis added.) Ferguson, 532 U.S. at 78, fn. 13. Yet, 

the Supreme Court has not held that a patient would have a lowered expectation of 

privacy and subject himself or herself to a warrantless search by the police in 

absence of such laws. 

{¶23} Therefore, this case is about the power of the police to perform a 

warrantless search of a patient’s medical records; in particular, the results of 

medical tests that have been previously properly performed by the hospital and 

that show a concentration of alcohol or drugs of abuse at the time of a suspected 

criminal offense. 

C. OVI Suspect’s Expectation of Privacy in Medical Records 

{¶24} Although the United States Supreme Court in Ferguson held that a 

citizen has a reasonable expectation of privacy in medical records, some state 

courts have since held that the society does not recognize a suspect’s expectation 

of privacy in medical records as reasonable in situations involving an investigation 

for operating a vehicle under the influence of alcohol or drugs of abuse. For 

example, the New Hampshire Supreme Court, reviewing the constitutionality of a 
Case No. 2-13-28 

-15- 

New Hampshire statute that was similar to the Ohio statutory scheme at issue, 

held, 

To the extent that the defendant may have a reasonable expectation 

of privacy in his medical records generally * * *, we conclude that 

society does not recognize a reasonable expectation of privacy in 

blood alcohol test results obtained and recorded by a hospital as part 

of its consensual treatment of a patient, where those results are 

requested by law enforcement for law enforcement purposes in 

connection with an incident giving rise to an investigation for 

driving while under the influence of intoxicating liquors or 

controlled drugs. See RSA 329:26. 

State v. Davis, 161 N.H. 292, 298, 12 A.3d 1271 (2010). 

{¶25} The New Hampshire Court arrived at this conclusion after reviewing 

decisions of courts in other jurisdictions: 

Courts in other jurisdictions addressing whether a reasonable 

expectation of privacy exists in blood test results in the DWI context 

have reached different conclusions. Several courts have found that 

society does not recognize a reasonable expectation of privacy under 

the Fourth Amendment in “blood alcohol test results obtained and 

recorded by a hospital as part of its consensual treatment of a patient, 

where those results are requested by law enforcement for law 

enforcement purposes only in the investigation of an automobile 

accident.” Hannoy v. State, 789 N.E.2d 977, 991 (Ind.Ct.App.2003); 

see also Tims v. State, 711 So.2d 1118, 1122–24 

(Ala.Crim.App.1997); People v. Perlos, 436 Mich. 305, 462 N.W.2d 

310, 319–21 (1990); State v. Guido, 698 A.2d 729, 733–34 

(R.I.1997); State v. Hardy, 963 S.W.2d 516, 523–27 

(Tex.Crim.App.1997); State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d 

109, 113 (1977). Others have held that the government’s acquisition 

of medical records under circumstances similar to those in this case 

violates the defendant’s rights under state constitutional provisions 

prohibiting unreasonable searches and seizures, see, e.g., Com. v. 

Shaw, 564 Pa. 617, 770 A.2d 295, 299 (2001), or state constitutional 

provisions that guarantee a right to privacy, see, e.g., King v. State,
Case No. 2-13-28 

-16- 

272 Ga. 788, 535 S.E.2d 492, 494–97 (2000); State v. Nelson, 283 

Mont. 231, 941 P.2d 441, 446–50 (1997). 

While the decisions of courts in other jurisdictions are not binding 

upon us, we find persuasive the reasoning of those cases that focused 

upon the unique circumstances presented when the government 

requests and acquires the results of blood tests administered for the 

purpose of diagnosis and treatment of injuries sustained in an 

automobile accident. See Tims, 711 So.2d at 1122–24; Hannoy, 789 

N.E.2d at 990–92; Perlos, 462 N.W.2d at 315–21; Hardy, 963 

S.W.2d at 523–27. We also agree that, “although not determinative, 

one source in analyzing the reasonableness of an expectation is to 

look to the Legislature,” Perlos, 462 N.W.2d at 319, and that 

whether a privilege exists may be some evidence of societal 

expectations, Hardy, 963 S.W.2d at 524. 

* * * 

By its plain language, the statute now exempts from the physicianpatient privilege blood alcohol test results of a person being 

investigated for driving under the influence of intoxicating liquor or 

controlled drugs where the blood alcohol tests were administered for 

the purpose of diagnosis and treatment. See State v. Nickerson, 147 

N.H. 12, 13, 780 A.2d 1257 (2001). 

By carving out an exception to the physician-patient privilege under 

this narrow set of circumstances, the legislature has reflected the 

societal “belief that when people drive, they encounter a diminished 

expectation of privacy.” Perlos, 462 N.W.2d at 320. The existence 

of the Implied Consent law further supports this conclusion. 

* * * 

Indeed, if a person refuses the request of a law enforcement officer 

to submit to physical tests or to a test of blood, urine or breath, the 

person’s license to drive will be suspended. See RSA 265–A:14 

(Supp.2010). 

Id. at 296-298. 
Case No. 2-13-28 

-17- 

{¶26} We disagree with the line of reasoning adopted by the Supreme 

Court of New Hampshire in Davis, which would require us to strip from an OVI 

suspect the reasonable expectation of privacy in medical records, as recognized in 

Ferguson. First, we note that many of the cases on which the New Hampshire 

Court relied were decided prior to Ferguson. The New Hampshire Court in Davis

distinguished Ferguson “because the testing [in Ferguson] was done for, and in 

conjunction with, law enforcement,” while “there was no law enforcement 

involvement in the taking or testing of the defendant’s blood sample in this case.” 

Id. at 298-299. Nevertheless, as we explained above, it is not “the taking or 

testing of the defendant’s blood sample” that we are reviewing in cases concerning 

search of a patient’s medical records by the law enforcement. Therefore, the 

distinction noted in Davis is not relevant to the case at hand. 

{¶27} Second, the New Hampshire Supreme Court’s reliance on an 

exception to the physician-patient privilege to find a lack of reasonable 

expectation of privacy is misplaced because this testimonial privilege applies to 

testimony at trial and does not apply to search warrants. See State v. Fairfield, 8th 

Dist. Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio 

St.3d 1486, 2013-Ohio-902, 984 N.E.2d 30 (holding that a prohibition against 

“testifying” applied “to trials and not search warrants because warrants are used to 

aid in the investigation process and are ancillary to the criminal proceedings”). 
Case No. 2-13-28 

-18- 

“Proceedings for a search warrant differ from a trial in that the rules of evidence 

do not apply.” State v. Jaschik, 85 Ohio App.3d 589, 598, 620 N.E.2d 883 (11th 

Dist.1993). Therefore, the fact that the statutory scheme at issue waives the 

physician-patient privilege for the purpose of testifying at trial cannot be used to 

circumvent the Fourth Amendment protections against unreasonable searches and 

seizures. 

{¶28} Furthermore, it cannot be argued that the existence of a physicianpatient privilege waiver, “might lead a patient to expect that members of the 

hospital staff might turn over evidence acquired in the course of treatment to 

which the patient had consented,” thus lowering the patient’s expectation of 

privacy. (Emphasis added.) See Hannoy v. State, 789 N.E.2d 977, 991 

(Ind.App.2003), quoting Ferguson, 532 U.S. at 78, fn. 13. As explained above, 

the dicta in Ferguson referred to the requirement of independently reporting 

evidence of criminal conduct to law enforcement “under rules of law or ethics.” 

Ferguson, 532 U.S. at 80-81. The statutory scheme at issue does not mandate 

independent reporting of evidence of the crime. Rather, it mandates responding to 

a law enforcement request to provide any evidence “of any test administered” to 

the suspect, regardless of whether it shows criminal conduct or not. See R.C. 

2317.02(B)(2)(a). Here, at issue is not the independent reporting requirement but 

rather, the police action of searching and seizing a patient’s medical records. 
Case No. 2-13-28 

-19- 

{¶29} Third, the use by the New Hampshire Supreme Court of the implied 

consent statute to support obtaining medical records without a warrant overlooks 

several important distinctions between the implied consent statute and the 

situations covered by Davis and by the Ohio statutory scheme at issue. The 

implied consent statute operates only after the driver has been arrested for OVI. 

State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 14, 23-

24; R.C. 4511.191(A)(2). Conversely, the method adopted by New Hampshire 

and advanced by the State in this case would allow for a warrantless search of the 

medical records without the requirement that the person is first arrested. As such, 

unlike in the implied consent cases, these situations would not even require 

probable cause prior to performing the search. See id. at ¶ 19, 23-24. Such a low 

threshold for a warrantless search goes beyond the recognized exceptions to the 

warrant requirement.6

 Furthermore, the warrantless search of a driver’s body for 

evidence of intoxication in situations where the driver is arrested for OVI has been 

justified by an exigency, which is a risk of losing evidence because of the 

diminishing alcohol concentration level in the driver’s blood. See id. at ¶ 19, 

citing Schmerber v. California, 384 U.S. 757, 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 

908 (1966).7

 No such exigency exists in circumstances where, as here, the tests 

 

6

 See list of recognized exceptions to the warrant requirement in part D. below. 

7 But see Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (limiting Schmerber and mandating 

a case-by-case approach to the OVI cases to determine whether sufficient exigency exists to allow a 

warrantless search). 
Case No. 2-13-28 

-20- 

have already been performed and their results are safely stored by the hospital. 

Finally, the implied consent statutes provide the driver with an opportunity to limit 

or withdraw the consent, thus avoiding the warrantless search, although the refusal 

to consent results in certain consequences. Id., at ¶ 20; State v. Brown, 158 Ohio 

App.3d 21, 2004-Ohio-3364, 813 N.E.2d 956, ¶ 13 (7th Dist.). Conversely, the 

statutory scheme at issue here does not provide for any possibility for the 

defendant to prevent the disclosure of his medical records to the law enforcement 

officials. In fact, it does not even include any notification to the defendant that his 

or her medical records are being searched. Thus, the situations addressed by the 

New Hampshire Supreme Court in Davis, as well as the situations covered by R.C. 

2317.02(B)(2)(a) and 2317.022, are entirely distinct from the situations involving 

implied consent to a test for alcohol concentration level of a drunk driver arrested

for OVI. 

{¶30} In addition, we note that even under the reasoning of the New 

Hampshire Supreme Court in Davis, the Ohio statutory scheme could not function 

to authorize warrantless searches of a driver’s medical records because of an 

important distinction between the Ohio statutory scheme and the statute upheld in 

Davis. The New Hampshire law permitted law enforcement to obtain medical 

records without a warrant only in connection with “the incident giving rise to the 

investigation for driving a motor vehicle while such person was under the 
Case No. 2-13-28 

-21- 

influence of intoxicating liquors or controlled drugs.” Davis, 161 N.H. at 297. 

The Ohio statutes would allow obtaining test results whenever there is any 

“criminal investigation,” not limited to only OVI investigations. R.C. 

2317.02(B)(2)(a); R.C. 2317.022(B). In an Indiana case on which the Davis court 

relied, the Indiana court excluded “fishing expeditions” related to “any criminal 

investigation” from the scope of its statute. Hannoy, 789 N.E.2d at 992. The 

Indiana court held: 

We do not want to be misunderstood as holding that Indiana Code 

Section 9–30–6–6(a) authorizes the release of toxicological test 

results or bodily fluid samples to law enforcement anytime it is 

requested in relation to any criminal investigation. We do not 

believe Section 9–30–6–6 authorizes broad “fishing expeditions” by 

law enforcement searching for evidence that some person has 

committed some crime. First, the placement of Section 9–30–6–6 in 

the Traffic Code clearly indicates that it applies only to criminal 

investigations concerning operating while intoxicated and its related 

crimes. Second, Hannoy was one of two drivers involved in a fatal 

motor vehicle accident, and we assume that law enforcement officers 

will limit their requests for toxicological test results specifically to 

drivers who have been hospitalized following an accident rather than 

requesting test results from patients at random for no reason 

whatsoever. This makes the request reasonable under the Fourth 

Amendment. 

(Emphasis added.) Id. 

{¶31} Unlike the statute in Hannoy, R.C. 2317.02(B)(2)(a) and R.C. 

2317.022 are not included in Chapter 4511—“Traffic laws,” in contrast to the 

implied consent statute, R.C. 4511.191, which appears immediately after R.C. 

4511.19—“Driving while under the influence of alcohol or drugs; tests; 
Case No. 2-13-28 

-22- 

presumptions; penalties; immunity for those withdrawing blood.” These sections 

are contained within the Revised Code sections for competency of witnesses, and 

Section R.C. 2317.02 is entitled “Privileged communications and acts.” As 

already discussed above, the physician-patient privilege does not apply to the 

search proceedings, and the fact that the statutory scheme at issue waives the 

physician-patient privilege for the purpose of testifying at trial, cannot be used to 

circumvent the Fourth Amendment protections against unreasonable searches and 

seizures.

{¶32} Neither the Ohio Supreme Court nor the United States Supreme 

Court have thus far held that an OVI suspect does not enjoy a reasonable 

expectation of privacy in his or her medical records that show an alcohol or drug 

concentration level in the suspect’s blood or urine. But the Ohio Fourth District 

Court of Appeals has recognized that an OVI suspect had a reasonable expectation 

of privacy in a urine sample obtained by a hospital as part of its routine treatment 

and later requested by a law enforcement officer. State v. Funk, 177 Ohio App.3d 

814, 2008-Ohio-4086, 896 N.E.2d 203, ¶ 13 (4th Dist.). 

{¶33} The recent decision of the United States Supreme Court in Missouri 

v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), supports a holding that an 

OVI suspect’s expectation of privacy should not be diminished easily. In 

McNeely, the United States Supreme Court limited situations in which a police 
Case No. 2-13-28 

-23- 

officer can request a blood test of an OVI suspect without a warrant to only those 

individual instances in which obtaining a warrant would be “impractical.” Id. at 

1561. The Supreme Court mandated a case-by-case approach, rejecting the state’s 

contention “that exigent circumstances necessarily exist when an officer has 

probable cause to believe a person has been driving under the influence of alcohol 

because BAC evidence is inherently evanescent.” Id. at 1554, 1561. 

In those drunk-driving investigations where police officers can 

reasonably obtain a warrant before a blood sample can be drawn 

without significantly undermining the efficacy of the search, the 

Fourth Amendment mandates that they do so. See McDonald v. 

United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) 

(“We cannot ... excuse the absence of a search warrant without a 

showing by those who seek exemption from the constitutional 

mandate that the exigencies of the situation made [the search] 

imperative”). 

Id. at 1561. 

{¶34} Although the McNeely decision focused on the exception to the 

warrant requirement rather than on the expectation of privacy, we find it relevant 

to the case at issue that the Supreme Court refused to allow warrantless searches 

even though “the privacy interest implicated by blood draws of drunk-driving 

suspects is relatively minimal” and the “governmental interest in combating drunk 

driving” compelling. Id. at 1564-1565. In spite of the recognized importance of 

preventing “drunk driving,” the Supreme Court declined to depart from the 

warrant requirement absent exigent circumstances: 
Case No. 2-13-28 

-24- 

“No one can seriously dispute the magnitude of the drunken driving 

problem or the States’ interest in eradicating it.” Michigan Dept. of 

State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 

412 (1990). Certainly we do not. While some progress has been 

made, drunk driving continues to exact a terrible toll on our society. 

See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 

2012) (reporting that 9,878 people were killed in alcohol-impaired 

driving crashes in 2011, an average of one fatality every 53 

minutes). 

But the general importance of the government’s interest in this area 

does not justify departing from the warrant requirement without 

showing exigent circumstances that make securing a warrant 

impractical in a particular case. 

Id. at 1565-1566. The Supreme Court added that “the Fourth Amendment will not 

tolerate adoption of an overly broad categorical approach that would dilute the 

warrant requirement in a context where significant privacy interests are at stake.” 

Id. at 1564. 

{¶35} This holding is very instructive in the case at issue. It directs us to 

prevent the dilution of the warrant requirement in cases where a patient’s federally 

recognized privacy interest in his or her medical records is at stake and no reasons 

exist to diminish that privacy interest. While we recognize the threat that drunk 

drivers pose on Ohio roads and the important interest of preventing drunk driving, 

we must also acknowledge that “the requirements of the Fourth Amendment 

cannot be lowered based upon the heinousness of the particular crime police are 

investigating.” Hannoy, 789 N.E.2d at 988. Here, the State failed to point to any 
Case No. 2-13-28 

-25- 

reason that would justify diminishing a patient’s privacy interest, so firmly 

protected by the United States Supreme Court, in securely-stored medical records. 

{¶36} We are mindful of Ohio cases that have previously addressed 

obtaining medical records pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022, 

and found no constitutional violations. For example, in State v. Tomkalski, 11th 

Dist. Lake No. 2003-L-097, 2004-Ohio-5624, the defendant alleged that his 

“constitutional right of privacy” was violated. Id. at ¶ 27. The Eleventh District 

Court of Appeals rejected the defendant’s challenge, without discussing Ferguson 

or the expectation of privacy. The court only noted that the medical records in 

Ohio were not protected by the constitutional right of privacy, but by the 

physician-patient privilege, which did not apply “ ‘[i]n any criminal action 

concerning * * * the results of any test that determines the presence or 

concentration of alcohol * * * in the patient’s blood.’ ” Id. at ¶ 26-27, quoting R.C. 

2317.02(B)(1)(c). In so far as the physician-patient privilege protects the medical 

records from unauthorized disclosure, the issues relevant here do not concern the 

Whalen right to privacy, which protects the medical records from unauthorized 

disclosure, as we noted in our discussion in section A. above. Instead, we are 

focusing on the Ferguson-recognized expectation of privacy in medical records as 

it relates to the warrantless search and seizure, and criminal prosecution that stems 

from it. The Eleventh District Court of Appeals did not address this issue. 
Case No. 2-13-28 

-26- 

{¶37} In City of Cleveland v. Rollins, 8th Dist. Cuyahoga No. 79614, 2002 

WL 490040 (Mar. 14, 2002), the defendant raised the issue of expectation of 

privacy in medical records. The Eighth District Court of Appeals recognized that 

R.C. 2317.02(B)(2)(a) serves “merely” to “protect the health care provider from 

potential civil liability arising out of the release of arguably privileged 

information,” rather than to control admissibility of evidence. Id. at *2. Yet, in 

spite of this recognition of the statute’s limited purpose, the Eighth District Court 

of Appeals did not address the defendant’s concerns regarding a violation of his 

expectation of privacy in his medical records. Instead, the court implied that R.C. 

2317.02(B)(2)(a) waives the “due process protections” of criminal defendants 

“who are suspected of drunk driving or other criminal activity.” Id. The court 

thus held that a constitutional violation did not occur where the defendant’s 

medical records were obtained pursuant to the statute because “any physicianpatient privilege had already been waived per the terms of R.C. 2317.02(B)(1)(c),” 

and “the health care provider in question may have chosen to relinquish the test 

results without first receiving a written statement from the investigating officer.” 

Id. Relying on the physician-patient privilege, the Eighth District Court of 

Appeals ignored the defendant’s concerns over his expectation of privacy in 

medical records. The Ferguson opinion was not mentioned either. 
Case No. 2-13-28 

-27- 

{¶38} We find it necessary to re-emphasize the difference between 

physician-patient privilege, which applies to admissibility of (properly obtained) 

evidence at trial, and the Fourth Amendment protection against the government’s 

unauthorized invasion into the patient’s medical records, which applies to the 

government’s ability to obtain the evidence. See State v. Fairfield, 8th Dist. 

Cuyahoga No. 97466, 2012-Ohio-5060, ¶ 16, appeal not accepted, 134 Ohio St.3d 

1486, 2013-Ohio-902, 984 N.E.2d 30; State v. Jaschik, 85 Ohio App.3d 589, 598, 

620 N.E.2d 883 (11th Dist.1993). While R.C. 2317.02(B)(2)(a) and R.C. 

2317.022 waive the physician-patient privilege, they do not strip an OVI 

defendant of his or her expectation of privacy in his medical records. 

{¶39} The Ohio Supreme Court noted that “R.C. 2317.02(B)(2) simply 

waives patient-physician privilege when law enforcement seeks to obtain certain 

test results.” (Emphasis added.) State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio4629, 833 N.E.2d 1216, ¶ 55. We have recognized in Meyers, 146 Ohio App.3d at 

575, 767 N.E.2d 739, that “R.C. 2317.02(B)(2)(a) excluded related records from 

the privilege.” “The clear intent of the legislature was to abrogate the physicianpatient privilege and provide the state access to blood-alcohol tests in criminal 

cases,” “ ‘except to the extent specifically prohibited by any law of this state or of 

the United States.’ ” Id. at 577, quoting R.C. 2317.02(B)(2)(a). We went even 

further to call R.C. 2317.02(B)(2)(a) a “mere[] * * * discovery tool through which 
Case No. 2-13-28 

-28- 

the state may request and receive the medical records described herein.” Id. at 

578. We did not, however, exclude R.C. 2317.02(B)(2)(a) from the scope of the 

Fourth Amendment and we did not hold that an OVI suspect does not have a 

reasonable expectation of privacy in medical records. Rather, in response to the 

defendant’s arguments that the hospital was a state actor (id. at 576), we reviewed 

the case under the search and seizure principles, holding that “the hospital’s blood 

test did not constitute state action necessary to implicate Fourth Amendment 

protections.” Id. at 575-578. Other Ohio courts similarly recognize the statute’s 

purpose as a waiver of a physician-patient privilege. See, e.g., Rollins, 2002 WL 

490040, at *2. 

{¶40} Therefore, we hold that an OVI suspect in Ohio enjoys a reasonable 

expectation of privacy in his or her medical records “that pertain to any test or the 

result of any test administered to the person to determine the presence or 

concentration of alcohol, a drug of abuse, or alcohol and a drug of abuse in the 

person’s blood, breath, or urine at any time relevant to the criminal offense in 

question,” which are stored securely in a hospital. R.C. 2317.022(B). It follows 

that, prior to obtaining such medical records a law enforcement officer must 

comply with the warrant requirement of the Fourth Amendment. 

 
Case No. 2-13-28 

-29- 

D. The State’s Practice of Obtaining Medical Records 

Pursuant to R.C. 2317.02(B)(2)(a) and R.C. 2317.022 

{¶41} Here, the law enforcement officer did not obtain a warrant prior to 

searching and seizing Little’s medical records. Warrantless searches are per se 

unreasonable unless one of the enumerated exceptions to the warrant requirement 

applies. McNeely, 133 S.Ct. at 1558; State v. Kessler, 53 Ohio St.2d 204, 207, 373 

N.E.2d 1252 (1978). The burden is on the state to establish that a warrantless 

search is valid under one of those exceptions. City of Xenia v. Wallace, 37 Ohio 

St.3d 216, 218, 524 N.E.2d 889 (1988). 

{¶42} The Ohio Supreme Court has explicitly recognized the following 

seven exceptions to the requirement that a warrant be obtained prior to a search: 

(a) a search incident to a lawful arrest; 

(b) consent signifying waiver of constitutional rights; 

(c) the stop-and-frisk doctrine; 

(d) hot pursuit; 

(e) probable cause to search, and the presence of exigent 

circumstances; 

(f) the plain view doctrine; and 

(g) administrative search. 

Stone v. City of Stow, 64 Ohio St.3d 156, 165, 593 N.E.2d 294 (1992). The parties 

do not argue that any of these enumerated exceptions applied in this case. 
Case No. 2-13-28 

-30- 

Therefore, we will not attempt to determine at this point whether Little’s particular 

situation would fit within one of those exceptions. Focusing on the statutory 

scheme at issue, we recognize that the seven exceptions above do not include a 

police officer requesting and searching records of medical tests, previously 

properly performed by the hospital, where no arrest, consent, hot pursuit, or 

probable cause and exigent circumstances exist. 

{¶43} This conclusion does not, however, mean that the statutory scheme at 

issue is unconstitutional. We merely hold that R.C. 2317.02(B)(2)(a) and R.C. 

2317.022 do not authorize a warrantless search and seizure of the patient’s 

medical records where no recognized warrant exception exists. Accordingly, the 

use of R.C. 2317.02(B)(2)(a) and R.C. 2317.022 without a warrant to obtain 

Little’s medical records violated his constitutional protection against unreasonable 

search and seizure. This conclusion means that on the basis presented to us, 

Little’s motion to suppress was not properly denied8

 by the trial court and that 

Little’s first assignment of error is sustained. 

{¶44} But because statutes enjoy a strong presumption of constitutionality 

and Little failed to sustain his burden of establishing beyond a reasonable doubt 

that R.C. 2317.02 and R.C. 2317.022 are unconstitutional, we overrule the second 

 

8

 We do not determine whether the exclusion of evidence is necessary herein, or if a good faith exception 

applies in this case. 
Case No. 2-13-28 

-31- 

assignment of error. See Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993, 916 

N.E.2d 1056, at ¶ 8. 

{¶45} Having reviewed the arguments, the briefs, and the record in this 

case, we find error prejudicial to Appellant in the particulars assigned and argued. 

The November 5, 2013 judgment of the Auglaize County Municipal Court is 

therefore reversed and we remand this matter for further proceedings consistent 

with this opinion. 

Judgment Reversed and 

Cause Remanded 

ROGERS, J., concurs. 

SHAW, J., dissents. 

{¶46} While I concur with the judgment of the majority that neither the 

appellant’s arguments nor the cases analyzed are sufficient to demonstrate that the 

statute at issue is unconstitutional, I dissent from the majority’s opinion because I 

do not agree with their conclusion that the exclusionary rule might apply in this 

instance without regard to the constitutionality of the statute. 

{¶47} The exclusionary rule was created as a judicial remedy for 

governmental violations of the Fourth Amendment. Illinois v. Krull, 480 U.S. 

340, 347, 107 S.Ct. 1160 (1987) citing Weeks v. United States, 232 U.S. 383, 34 

S.Ct. 341 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). The “prime 
Case No. 2-13-28 

-32- 

purpose” of the exclusionary rule is to deter unlawful police conduct. United 

States v. Calandra, 414 U.S. 338, 94 S.Ct. 613 (1974). “[T]he [United States] 

Supreme Court has held suppression is not an available remedy when police 

officers conducted a search in good faith reliance on some higher authority, such 

as a warrant or a statute, even if the warrant or statute were later held invalid or 

unconstitutional (the ‘good faith exception’).” (Emphasis added.) United States v. 

Gonzalez, 598 F.3d 1095 (9th Cir.2010), citing Illinois v. Krull, 480 U.S. 340, 347, 

107 S.Ct. 1160 (1987). 

{¶48} In Illinois v. Krull, the United States Supreme Court held that the 

exclusionary rule does not apply where an officer is acting in a good-faith reliance 

on the validity of a law, and that is exactly what happened in this case. Krull, 480 

U.S. at 349. The police utilized a statute that this court has unanimously found is 

not unconstitutional and there is no indication that the officer did not comply with 

the statute in obtaining the evidence at issue. It is both contrary to law and an 

abuse of judicial discretion for this court to remand this case to the trial court with 

instructions to consider application of the exclusionary rule in this circumstance. 

Accordingly, I would overrule the appellant’s assignments of error and I would 

affirm the judgment of the trial court. 

/jlr